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Travis v. Ferraraccio9/19/2005
she is familiar is similar to that of the one in which the defendant practices based on a comparison of information such as the size, location, and presence of teaching hospitals in the two communities. See, e.g., Roberts v. Bicknell, 73 S.W.3d at 114; Sandlin v. Univ. Med. Ctr., No. M2001-00679-COA-R3-CV, 2002 WL 1677716, at *6 (Tenn. Ct. App. July 25, 2002), perm. app. denied (Tenn. Dec. 2, 2002). We have never held that a plaintiff's expert must be familiar with the actual standard of professional practice in the defendant's own community in order to be able to testify that the defendant's community is similar to another community with which the expert is familiar. To do so would contradict the express wording of the statute. Therefore, the trial court erred by applying an incorrect legal standard in determining the admissibility of Dr. Abrams's testimony.
The trial court's second basis for excluding Dr. Abrams's testimony is likewise flawed. Because the demographic and statistical information attached to Dr. Abrams's initial affidavit in opposition to the summary judgment motion was not from 1996 alone, the trial court apparently concluded that his testimony that Clarksville and St. Joseph were similar communities in 1996 was so "inherently unreliable" that it should be excluded from consideration by the trier of fact. The trial court impermissibly invaded the province of the trier of fact by making this determination.
A plaintiff in a medical malpractice case must prove by expert testimony the standard of acceptable professional practice in the defendant's community or a similar community at the time the alleged injury or wrong took place. Tenn. Code Ann. ยง 29-26-115(a)(1). This does not mean, however, that an expert testifying that a community is similar to that of the defendant must support his or her testimony solely with data from the year in which the treatment was provided. A reasonable trier of fact could well conclude from the information provided by Dr. Abrams in his initial affidavit that the medical community of St. Joseph was more likely than not similar to that of Clarksville in 1996 when Drs. Ely and Ferraraccio were treating Mr. Travis. State v. Stevens, 78 S.W.3d at 834 ("the court may make a finding of reliability if the expert's conclusions are sufficiently straightforward and supported by a rational explanation which reasonable persons could accept as more correct than not correct"). The small temporal difference between the statistics for Clarksville and the statistics for St. Joseph does not represent the sort of "analytical gap" that would justify the exclusion of Dr. Abrams's expert testimony at a stage of the process where the trial court is determining admissibility alone. State v. Stevens, 78 S.W.3d at 834 (quoting General Elec. Co. v. Joiner, 522 U.S. at 146, 118 S.Ct. at 519).
Moreover, Dr. Abrams provided testimony in his affidavit that "connected the dots" between the 1996 and 1997 statistical information for Clarksville and the 2000 statistical information for St. Joseph. Dr. Abrams stated that he was familiar with the medical community in St. Joseph in 1996 because of the many patient referrals he had received from St. Joseph and his attendance at meetings and seminars where he discussed the practice of medicine in St. Joseph with physicians from there. Thus, Dr. Ely's and Dr. Ferraraccio's arguments regarding the significance of the temporal difference between the statistics for Clarksville and those for St. Joseph "essentially contest the weight of statements and thus misapprehend the procedural context of this case." Stovall v. Clarke, 113 S.W.3d at 723. These were matters to be tested at trial. See McDaniel v. CSX Transp., Inc., 955 S.W.2d at
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